Citation Nr: 1509838
Decision Date: 03/10/15 Archive Date: 03/17/15
DOCKET NO. 13-09 433 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington
THE ISSUES
1. Entitlement to an initial schedular rating in excess of 10 percent for restrictive lung disease.
2. Entitlement to an initial schedular rating for adjustment disorder with depression in excess of 30 percent prior to June 20, 2013, and in excess of 50 percent thereafter.
3. Entitlement to an initial compensable schedular rating for status post loop electrosurgical excision procedure (LEEP) with hemorrhaging.
4. Entitlement to an extraschedular rating.
5. Entitlement to a total disability rating based on individual unemployability (TDIU).
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Joshua Castillo, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 2005 to November 2008.
This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision of the Seattle, Washington, Regional Office (RO) of the Department of Veterans Affairs (VA).
The Veteran appeared at a hearing before the undersigned Veterans Law Judge in September 2014. She submitted additional evidence at that time. The Veteran waived review of the evidence by the RO. See 38 C.F.R. § 20.1304(c) (2014). Waiver of RO review of the additional evidence is also presumed given the date of the Veteran's substantive appeal.
In September 2009, June 2010, and during the September 2014 hearing, the Veteran raised the issue of whether she was unemployable due, in part, to her service-connected disabilities. The Board takes jurisdiction of the issue of entitlement to a TDIU because it is part and parcel to the issues on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).
Other than the issue pertaining to a higher initial schedular rating for restrictive lung disease, the issues are REMANDED to the agency of original jurisdiction.
FINDING OF FACT
Pulmonary function testing shows FEV-1 of at least 75 percent and FEV-1/FVC of at least 78 percent.
CONCLUSION OF LAW
The criteria for an initial schedular rating in excess of 10 percent for restrictive lung disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1-4.7, 4.97, Diagnostic Code 6845 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duties to Notify and Assist
VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014). The appeal of the lung disease rating arises from a disagreement with the initially assigned disability rating after service connection was granted. Once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice is no longer required because the claim has already been substantiated.
VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c). VA's duty to assist includes a duty to obtain all relevant records. Relevant records are those that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim. See Golz v. Shinseki, 590 F.3d 1317, 1321-22 (Fed. Cir. 2010).
The Veteran's service treatment records have been obtained. Post-service VA and private treatment records have also been obtained.
The Board finds that the Veteran's VA vocational rehabilitation records are not relevant to her claim for an increased schedular rating for restrictive lung disease, which is based on pulmonary function test (PFT) results. See 38 C.F.R. § 4.97, Diagnostic Code 6845 (2014). Such complex diagnostic tests are not likely included in vocational rehabilitation records. While the vocational rehabilitation records may show functional impact not contemplated in the schedular rating criteria, any such impact will be considered upon remand. Accordingly, VA's duty to obtain relevant records has been met for this claim as to obtaining relevant evidence.
The Veteran was provided a VA medical examination in September 2009.
In a February 2014 statement, the Veteran's representative asserts, without rationale, that the Veteran needs a new respiratory examination.
First, the Board finds that the September 2009 VA examination, along with the expert medical opinion, is sufficient evidence for deciding the claim. The report is adequate as it is based upon consideration of the Veteran's prior medical history and describes the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contains a reasoned explanation. To that end, the examiner explained that he conducted a pre-bronchodilator PFT but not post-bronchodilator PFT, because the Veteran had difficulty performing the pre-bronchodilator PFT and needed to use her inhaler, which invalidated the post-bronchodilator PFT. The examiner also explained that the pre-bronchodilator PFT accurately represents the severity of the Veteran's condition. The Board finds that the examiner adequately explained why a post-bronchodilator PFT should not be used for evaluating the Veteran's restrictive lung disease. See 38 C.F.R. § 4.96(d)(1)(4) (2014) (requiring a post-bronchodilator PFT unless the examiner explains why a post-bronchodilator PTF should not be used).
Second, the Board finds that the Veteran does not contend, and the evidence does not suggest, that her service-connected restrictive lung disease worsened since her last VA examination in September 2009. See 38 C.F.R. § 3.327 (2014). In fact, pulmonary treatment records, namely PFTs, show that the disability may have improved since the September 2009 VA examination. See, e.g., Seattle Women's Clinic (Dec. 31, 2013); VA PFT (Sept. 9, 2014).
For these reasons, re-examination is not needed. VA's duty to assist has been met.
II. Analysis
The Veteran seeks an initial schedular rating in excess of 10 percent for the service-connected restrictive lung disease, which is currently rated under 38 C.F.R. § 4.97, Diagnostic Code 6845.
Under General Rating Formula for Restrictive Lung Disease (Diagnostic Codes 6840 through 6845), the current 10 percent rating is warranted for FEV-1 of 71 to 80 percent predicted, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB) 66 to 80 percent predicted. The next higher rating, 30 percent, is warranted for FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56 to 65 percent predicted. A 60 percent rating is warranted for FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating is warranted for FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40 percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. 38 C.F.R. § 4.97, Diagnostic Code 6845.
At a VA examination in September 2009, the Veteran reported shortness of breath after walking 4 city blocks, but that she did not experience any overall functional impairment. The examiner reported that the Veteran used an albuterol inhaler four times daily for the last 6 months, but that the response was minimal. Examination revealed no complications such as cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or chronic respiratory failure with carbon dioxide retention. A pre-bronchodilator PFT revealed FEV-1 of 75 percent predicted and FEV-1/FVC of 98 percent. The examiner noted that the Veteran provided a good effort. He opined that the FEV-1/FVC most accurately reflects the severity of the Veteran's condition. Because of this, a DLCO was not performed. The examiner noted that the Veteran had difficulty performing PFT during the pre-bronchodilator portion of test and needed to use her inhaler, which invalidated the post-bronchodilator test.
As noted previously, the Board finds that these pre-bronchodilator PFT results are adequate to evaluate the Veteran's disability because the examiner adequately explained why a post-bronchodilator PFT should not be used. See 38 C.F.R. § 4.96(d)(1)(4).
A December 2013 PFT revealed pre-bronchodilator FEV-1of 78 percent predicted and FEV-1/FVC of 102 percent. A post-bronchodilator PFT was not conducted. See Seattle Women's Clinic (Dec. 31, 2013). The Board finds that these pre-bronchodilator PFT results are not adequate to evaluate the Veteran's disability because the examiner did not provide any explanation as to why a post-bronchodilator PFT should not be used. See 38 C.F.R. § 4.96(d)(1)(4). In any case, the results are less severe than the 2009 results.
A September 2014 PFT revealed post-bronchodilator FEV-1of 78 percent predicted and FEV-1/FVC of 78 percent. See VA treatment records (Sept. 9, 2014).
During the pendency of the appeal, the criteria for a rating in excess of 10 percent have not been met. Pulmonary function testing shows FEV-1 of at least 75 percent and FEV-1/FVC of at least 78 percent. See id.; VA exam. (Sept. 2009). Both PFT result sets are outside the ranges required for a 30 percent rating, which is 56 to 70 percent for FEV-1 and FEV-1/FVC. Additionally, even worse PFT results are necessary for even higher ratings. Moreover, the symptoms/treatment methods contemplated by a total rating are not reflected by the evidence.
In sum, the preponderance of the evidence is against the claim for an initial schedular rating in excess of 10 percent for service-connected restrictive lung disease; there is no doubt to be resolved; and a higher initial schedular rating is not warranted. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014).
ORDER
An initial schedular rating in excess of 10 percent for restrictive lung disease is denied.
REMAND
As to the claim of increase for status post LEEP with hemorrhaging, evidence of continual bleeding and cramping since the LEEP in 2007 may support a compensable rating on the basis of symptoms that require continuous treatment. See 38 C.F.R. § 4.116, Diagnostic Code 7612-7615 (2014). However, it is unclear whether the Veteran's bleeding is related to the service-connected LEEP. See Dr. Burnett (Jun. 15, 2010) ("I doubt bleeding now related to LEEP but [the Veteran] is convinced of connection."). Accordingly, further medical development is needed.
During the September 2014 Board hearing, the Veteran reported that she participated in a VA vocational rehabilitation program, the records of which would be relevant to her adjustment disorder and TDIU claims. See Todd v. McDonald, 27 Vet. App. 79, 86 (2014); Golz, 590 F.3d at 1321-22. These records must be associated with the claims file. Id.; 38 C.F.R. § 3.159(c)(2).
The development of the TDIU issue may have an impact on the complete picture of the Veteran's service-connected disabilities and their effect on her employability as it pertains to extraschedular consideration. See Brambley v. Principi, 17 Vet. App. 20, 24 (2003). Thus, the issue of entitlement to an extraschedular rating is also remanded.
Accordingly, these issues are REMANDED for the following actions:
1. Obtain the Veteran's VA vocational rehabilitation records.
If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e).
2. Thereafter, schedule the Veteran for a VA examination in connection with the LEEP rating claim by an appropriate medical professional. The examiner must review the entire claims file, to include all electronic files.
The examiner is to determine the current severity of the Veteran's service-connected status post LEEP with hemorrhaging.
The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's continual bleeding and cramping is related to her service-connected status post LEEP with hemorrhaging. The examiner is to address Dr. Burnett's June 15, 2010, statement.
The examination report must include a complete rationale for all opinions expressed.
3. Finally, after conducting any other development deemed necessary, readjudicate the issues remaining on appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs